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[2018] ZAGPPHC 523
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Dlamini and Another v Mthetwa and Others (A409/11) [2018] ZAGPPHC 523 (15 March 2018)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA )
(1)
NOT
REPORTABLE
(2)
REVISED
CASE
NUMBER: A409/11
15/3/2018
In
the matter between:
FLORA
KHETIVWE
DLAMINI
FIRST APPELLANT
SIKHOVA
PRE-SCHOOL
SECOND APPELLANT
and
ALBERT
MTHETWA
FIRST RESPONDENT
ELSIE
MAPIYEYE
SECOND RESPONDENT
ALBERT
NXUMALO
THIRD RESPONDENT
MARGARET
NXUMALO
FOURTH RESPONDENT
ALBINAH
LUBISI
FIFTH RESPONDENT
JUDGMENT
TLHAPI
J
INTRODUCTION
[1]
The appellant appeals the decision of the Magistrate sitting at
Thulamahashe, dismissing
an application by the appellants concerning
the second appellant from being being operated as a preschool.
[2]
The appellants approached the court for an interim order to seize a
certificate of
registration of a Non-Profit Organization which
certificate was issued in the name of the second appellant and, to
stop the respondents
from also operating another pre school
going by the same name. Furthermore, that it be ordered that the
pre-school and the
children enrolled by the respondents be moved to a
building adjacent to the Floraphophe Higher Primary School and that
respondents
and the community be interdicted from taking part in the
running of a pre-school inside the premises of Floraphophe. The
application
was opposed.
[3]
At the commencement of the proceedings
the Court requested counsel for the appellants, who was the only one
present to address certain
problems relating to the state of the
file, the application for condonation; that certain attachments
referred to by the respondents
in the answering affidavit were not
annexed and the reason why a constitution dated 2009 of the
non-profit organization which was
alleged to have been registered by
the applicant was for the first time annexed to his heads of
argument.
CONDONATION APPLICATION
[4]
There
was an application for condonation for the late filing of the amended
notice of appeal and for prosecution of the appeal.
The newly
appointed instructing attorney for the appellant's Mr Makhafola
deposed to the founding affidavit. No application for
condonation had
been filed by the previous attorneys for the late filing of the
appeal, as a result the matter was struck off the
roll due to the
non-appearance of the appellant's attorneys at a previous hearing and
after their withdrawal as attorneys of record.
The appellants
contended that they had prospects of success because (a) in Case
Number 61391/2013 in a separate application the
Minister of Social
Development had been interdicted from making payment to the
respondents of any grants into a bank account controlled
by the above
respondents held with Standard Bank under account number [….]
(b) there were prospects that the certificate
NPO number 025-592
would be returned to the second appellant. The application was not
opposed and despite the problems above condonation
was granted.
FACTUAL
BACKGROUND
[5]
The
first appellant ('Ms Dlamini’) averred that the second
applicant, Sikhova Pre school, ('pre-school') was established
in
2003 and that she had launched the application in her capacity as
founder and chairperson of the second applicant. She annexed
annexure
A being a letter dated 22/12/2008 from the Department of Social
Development and, annexure B the certificate NPO 025-592
dated 24
April 2003. In a letter from the Department of Social Development
dated 4 June 2009 the recognized office bearers including
Ms Dlamini
were stated as AN Makhubele, PB Minisi, Ms L Hlatshwayo, Ms D
Mkhantshwa, Ms Moagi and Ms A Manzini. Ms Dlamini contended
that the
pre-school was a body corporate which had its own constitution. She
referred to the respondents as the 'so called new
office bearers' of
the second applicant.
[6]
The
pre-school initially operated from somebody's house in 2003 and
during 2004 they were given a class room to use temporarily
at the
Floraphophe H P School. Funds were applied for, for the building of a
proper pre-schoolon a stand adjacent to Floraphophe,
and there was a
feeding scheme funded by the Department of Social Development ,
('the
Department.')
[7]
On
20 January 2009 the appellants received a letter from the principal
at Floraphope to vacate the school premises, annexure D was
annexed.
An extension of time was given to them and on 18 March 2009 they were
given up to 20 March 2009 to vacate. Ms Dlamini
averred that after
one classroom had been built she requested Floraphophe to release the
children to attend the newly built pre-school.
It was only then that
she discovered that a new commtitee, the first to the fourth
respondents had been appointed to run the pre-school.
The latter
committee was using the same certificate issued to her as a
chairperson. She annexed a letter from the Department of
Social
Development dated 4 June 2009. She contended that she was being
hindered from reportinga s she was required to do from time
to time
to the Director of the department concerned.
[8]
The
respondents raised two points
in
limine.
They contended that (a) Ms
Dlamini lacked
locus standi
to
bring the application as she had not been authorised by Power of
Attorney to do so on behalf of the second applicant, alternatively,
she was not the chairperson or a committee member of the second
applicant; (b) there were factual disputes and the first applicant
should have instituted an action against the respondents.
[9]
According
to the respondents the need for a preschool was identified by the the
Floraphophe community and a pre-school was established
during 2001 by
Tainor Mthethwa, the second respondent. the first applicant and
Winnie Mthetwa. The community organised a group
of women and an
interim committee was appointed made up of the first applicant as
chairperson, the second respondent as secretary
and Winnie Methethwa
as treasurer and the pre-school operated from the house of one Judas
Sibuyi. The school was named after headman
Sikhova Nxumalo after the
interim committee had approached the family who agreed to the use of
his name.
[10] A
site was applied for and the local headman Mr Mayinga had
consultations which were held
with the Amashanghana Tribal Authority
and a site was allocated adjacent to the Floraphophe H P School. The
interim committee was
responsible for the registration of the
pre-school with the Department. A certificate of registration of a
non-profit organization
no: 025-592NPO was issued.
[11] The
Department allocated a grant and deposited an amount of R58 870.00
for the running of
the pre-school into a bank account which was
opened by Ms Dlamini, Ms Winnie Mthethwa and the second respondent.
The Department
suggested that the children be accommodated at the
Floraphophe H P School due to health reasons and the community and
local headman
agreed and they were welcomed at the school. A building
was erected on the adjacent site with money allocated by Government.
[12]
The
conflict revolves around the pre-school operating from the
Floraphophe H P School and the one now being run by Ms Dlamini from
the site that was allocated to the pre-school. Furthermore, although
Ms Dlamini was a founder member problems started when she
was not
re-elected to the new committee during 2008. The respondents contend
the pre-school was a community project. The certificate
was issued
and the money allocated for the purpose of a community project and
was never meant to belong to Ms Dlamini in her personal
capacity.
They contend further that the pre-school run by Ms Dlamini was
illegal.
[13]
The
new committee elected in 2008 consisted of P Ndlovu (chairperson), ZA
Mthethwa {Vice-Chair), E Manzini (Secretary), U Khensani
(Vice-Secretary), L Makhubele (Treasurer), S Ngwenya and S Nxumalo as
additional members. The respondents contend that these members
were
properly elected in the presence of the local headman, counsellor,
and stakeholders. Another election was held during 2009
in the
presence of the local headman, ward councillor and community
stakeholders and the Department. Ms Dlamini was also present
at such
elections, she allegedly refused to sign the attendance register and,
the election minutes of the 3 June 2009 were annexed
as
J
and she was not re-elected again.
[14]
The
respondents contended that the contents of the letter from the
Department annexure A to the founding affidavit were contrary
to
annexure Q dated 4 June 2009 also from the Department which
identified who the office bearers were. According to them none of
the
individuals mentioned in annexure A were elected at any meeting of
the community and there was no confirmation from them annexed
to the
founding papers. It was contended that the certificate annexed as
annexure B was clear indication that it was not issued
to Ms Dlamini
in her personal capacity and cannot be used by her for her own
private school.
[15]
It
was only the fourth respondent who was an office bearer, occupying
the position of chairperson and being the one who had locus
standi on
behalf of the second applicant. The first, second, third and fifth
respondents were not office bearers of the second
applicant neither
were all the seven individuals mentioned the founding affidavit. The
respondents contend that having regard to
the content of annexure C
it was in response to a request to confirm the office bearers which
letter was written to the Department
a day after the elections were
held on 3 June 2009. They contend that this was an attempt by Ms
Dlamini to mislead the Department
after attending a meeting at which
she was not elected.
[16] Except
for confirming that the second applicant was registered as a
non-profit organization
with a constitution it was denied that the
second applicant was a body corporate. It was averred that the
community also contributed
financially towards the building now
occupied by Ms Dlamini. The second applicant is still run as a
community pre-school run from
the premises of Floraphophe H P School
and is recognized by the Department, the local headman , the
Bushbuckridge Municipality
and the social worker who frequently pays
visits to pre-school. The respondents contend that an interdict
against the
'community at large' was
not appropriate except
that it is indication that the community does not agree with the
conduct of the first applicant.
GROUNDS
OF APPEAL
[17] The
main ground of appeal was that the Magistrate had overlooked the fact
that Ms Dlamini
was the founder of the pre-school and rightful owner
of the certificate which fact was confirmed by the Department in
their letter
of 11 January 2010. Furthermore, Ms Dlamini and her
office bearers were not present at a meeting where she was allegedly
not re-elected
chairperson. Another ground was that the Magistrate
had allowed oral evidence to be heard and had placed too much
reliance on the
evidence of Mr Mainga to arrive at a decision to
dismiss the application.
THE LAW
[18] What
needs to be dealt with first in this appeal relates to the conduct of
the proceedings
before the Magistrate. During the hearing of the
application the Magistrate called for the viva voce evidence of Mr
Mainga the
headman and partly relied on his evidence to arrive at his
decision. Since those were motion proceedings the court was obliged
to rely only on the three affidavits presented which constituted the
entire evidence of the parties. The evidence of Mr Mainga should
not
have been called for or even considered and falls to be struck out in
its entirety.
[19] The
Magistrate dismissed the application basing his decision on the fact
that it was not
competent to grant an order removing the children
attending pre-school at Flora Phophe H P School to the one operated
by Ms Dlamini.
The parents had the freedom to choose their preferred
pre-school and, that such an order would be tantamount to directing
closure
of the pre-school. He also stated that it would not be
competent to give an order against the community. The Magistrate
having
determined that there was in-fighting among the parties, in my
view what should have been raised by the respondents and by the court
was that interested parties had not been joined being, the individual
parents of the children and the members of the community
involved.
Their input was crucial to the determination of the issues.
[20] Furthermore,
the judgment failed to deal with pertinent issues that arose on the
papers, firstly
that there were material disputes of fact and,
secondly, that the applicant raised new facts in reply. The fact that
these aspects
were not dealt with gives reason for this court to
revisit the issues afresh.
THE
PROCEDURE TO BE ADOPTED
[21] In
considering which process to follow it is important to determine
between actions and
applications. Where
bona fide
disputes of
fact are anticipated a litigant should rather proceed by way of
action because in applications the dispute is resolved
by the court
confining itself to the evidence on paper. Where there are material
bona fide
and anticipated disputes of facts the litigant runs
the risk of the application being dismissed because of the
impossibility of
resolving such disputes on paper,
Room Hire
Co
(Pty) Ltd v Jeppee Street Mansions Ltd
1949 (3) SA 1155(T).
[22]
In
the answering affidavit the respondents contended that there were
disputes of fact, however, they did not call for a referral
to oral
evidence. It was common cause that Ms Dlamini sought final relief
against the respondents. Where there were factual disputes
of fact
and where final relief was sought the matter could not simply be
determined according to a balance of probabilities as
argued by
counsel for the appellant. It is trite that in those circumstances
the matter had to be decided with reference to the
Plascon- Evans
Rule, which laid down that the matter had to be determined on the
facts as stated by the respondents together with
those admitted or
not denied by the applicant, unless, where the Court found that the
disputes were not real, in that the version
of the respondents was
far fetched or untenable. the court would be justified in rejecting
the version of the respondents in its
entirety merely on the papers;
Plascon Evans Paints v Van Riebeeck
Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[23]
The
papers are replete with disputes of fact as seen from the answering
affidavit. In my view these happen to be material and give
reason for
application to be dismissed. Only those disputes I consider to be
important shall be mentioned below:
•
Ms
Dlamini has cited the respondents as the ·so called' new
members of the second applicant. Except for the fourth respondent,
the rest of the respondents deny being members of the second
applicant. I shall return to this aspect when discussing new matter
brought in reply.
•
There
is a dispute relating to how the second applicant was established.
The respondents contend it was established as a community
project and
that initially Ms Dlamini was the chairperson until she was not
re-elected at a meeting convened during 2008 and again
in 2009. The
respondents stated that she was present at the 2009 meeting convened
for electing a new committee and that all interested
parties were
present at such meeting. They contend that she declined to sign the
attendance register; Ms Dlamini denies being present
at such meeting.
If indeed a new committee was elected then respondents would be
correct to challenge the
locus standi
of Ms Dlamini
to
launch the application.
•
The
respondents question the authenticity of the letter dated 4 June 2009
from the Department listing the names of the committee
members of the
second applicant. The respondents contend that no elections were ever
held for the election of the individuals mentioned
in such letter,
and that they were not on the committee of the second applicant. The
respondents point out to the difference in
members appearing in
annexure A to the founding affidavit and annexure Q and, they contend
that Ms Dlamini must have misled the
Department into writing the
letter because none of the individuals appearing in Annexure A ever
attended or were elected at any
community meeting. No confirmatory
affidavit from them is attached to the founding papers. However it
seems from the record that
when the matter was argued further
documents from the applicant were presented which did not form part
of the three affidavits
and annexures to the papers, which documents
allude to a meeting being held to nominate the members who were
queried.
•
Ms
Dlamini and the respondents refer to a constitution of the second
applicant which was used in the registration of the non-profit
organization, none of the parties annexed a copy to any of the
affidavits. In terms of the Non-Profit Organization Act 71 of 1997
the founding constitution is a requirement for registration. In
argument mention was made to a 2005 constitution and applicant's
counsel annexed a copy of a constitution dated 2009 to his heads of
argument.
•
Both
the parties seem to rely on the same certificate of registration of
the non profit organization. The certificate does
not state that
it was issued to Ms Dlamini nor does it reflect her status as
chairperson and founder of the second applicant. Counsel
for the
applicant contended that the constitution which was not attached to
the founding affidavit, provided for the continuation
of Ms Dlamini
as a chairperson of the second appellant. There was no mention of
such fact in the founding affidavit, which constitution
was
apparently the one annexed to the Heads of Argument.
•
It
was conceded in argument by the counsel that there were disputes of
fact, which in my view were foreseeable by the first appellant.
NEW
MATTER IN THE REPLYING AFFIDAVIT
[24] The
first appellant for the first time raised new matter in her replying
affidavit. It was
argued by counsel for the appellant that the facts
were a response to what was raised in the answering affidavit and did
not constitute
new matter. An applicant is expected to make out
his/her case in the founding affidavit and not in reply unless there
exists special
circumstances,
Poseidon Ships Agencies (Ply) Ltd v
African Coaling and Exporting
Co
(Durban) Pty and Another1980
(1) SA 313 (OLD) confirmed in
Faber Lola
V
Nazerian
Rimon
2013 ZAGPJHC 65 at paragraph 22 and 23:
“
[22] The
general rule which is well established in our law is that in motion
proceedings, the applicant
is required to make his or her
case
in the founding
affidavit and not in the replying affidavit. The rule
is
also based on the
procedural requirement of the motion proceedings which requires that
the applicant should set out the cause of
action in the notice of
motion and supporting affidavit. The notice and founding affidavit
form part of both the pleadings and
the evidence. The basic
requirement is
also
that the relief
sought has to be in the evidence supported by the facts set out in
the founding affidavit.
[24]
In
considering whether to allow new material
..
...the
Court has
a
judicial
discretion to exercise.....The new issues in reply will generally be
allowed in circumstances where the applicant could
not have known of
such issues at the time of deposing to the founding affidavit
[25]
It
came out for the first time during reply that the reason for citing
the respondents was because of a document received from the
Department of Educaiton in which the respondents had described
themselves as a committee which sought registration of the second
appellant. Ms Dlamini contended that the said documents was the
reason which prompted the launch of the application. Furthermore,
there was an attempt in argument to bring in new documents to explain
the list of names on the letter of 4 June 2009. Also annexed
to
counsels heads of argument was a 2009 constitution. It is my view
that this new information was within the knowledge of the
first
appellant when the application was launched and should have been
dealt with in the founding affidavit in order to give the
respondent
opportunity to deal with it in answer. This constitutes a second
reason why the appeal should be dismissed.
[26]
In
the result the following order is given:
1.
The appeal is
dismissed with costs.
TLHAPI
VV
(JUDGE
OF THE HIGH COURT)
I
agree,
MOTEPE
JA
(ACTING
JUDGE OF THE HIGH COURT)
MATTER
HEARD ON
:
11
NOVEMBER 2016
JUDGMENT
RESERVED ON
:
11
NOVEMBER 2016
ATTORNEYS
FOR THE APPELLANTS :
ATTORNEYS
FOR THE RESPONDENTS :